Friday, January 14, 2011

Product-centric Patenting: An Approach to Protecting the “Look and Feel” of Software Products

When asked why they wish to secure intellectual property rights, inventors often provide a succinct response: they wish to protect the “look and feel” of their product. The advantages of such protection are particularly pronounced in the realm of software implemented inventions, where interface design can make or break a product. Inexperienced attorneys often find fashioning protection for the look and feel of software products to be a vexing problem. Contributing to this difficulty is the fact that attorneys are trained to draft applications directed toward a single (or set of closely related) concepts. When presented with the bundle of ideas embodied in a single software product, it can be difficult to determine where to begin.

Fortunately, a combination of utility and design patents can often be employed to efficiently weave a web of protection for the look and feel of a product. Design patents lend themselves well to protecting the “look” of software implemented inventions. As discussed in a previous Ordinary Observer post (by Matthew Grady), design patents are increasingly being utilized to protect a variety of user interface elements. More specifically, design patents can be used to protect icons and other static graphical elements. In addition, the United States Patent and Trademark Office is presently issuing design patents that cover the movement and animation of these graphical elements. With these tools in hand, user interface innovations can be cost effectively protected using design patents.

Further, under a product-centric patenting methodology, utility patents can be used to augment and complement these design patents. Utility patents are well-suited to protect the “feel” of a software product by protecting both the innovative functions performed by the software product and, in some cases, the manner in which the functions are implemented. Utility patents can be used to cover a number of processes that, for example, lower the latency within the user interface, interoperate with other software products or efficiently store data to decrease the physical footprint of the hardware executing the software product. Thus, utility patents can be used to protect commercially valuable “under the cover” aspects of software products.

While protecting the complexity and innovation present within some software products can be a daunting challenge, careful use of design and utility patents can be used to create a web of protection for the look and feel of a software product in a cost effective manner.

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